United States v. Clifton Barnes

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4854

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

CLIFTON BARNES,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:05-cr-00256-FDW-1)

Submitted: September 30, 2011 Decided: October 26, 2011

Before WILKINSON, DAVIS, and WYNN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Richard L. Brown, Jr., LAW OFFICES OF RICHARD L. BROWN, JR.,
Monroe, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Clifton Barnes appeals from his conviction and

resulting 262-month sentence after pleading guilty to possession

of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g) (2006), and possession with intent to distribute

cocaine base, in violation of 21 U.S.C. § 841(b)(1)(C) (2006).

(ER 212). Barnes’ counsel has filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), stating that in his

view, there are no meritorious issues, but raising the issue of

whether the district court erred in denying Barnes’ motion to

withdraw his guilty plea. We conclude that the court did not

err in denying Barnes’ motion to withdraw as to the possession

with intent to distribute count, and affirm that conviction. We

reverse Barnes’ felon in possession of a firearm conviction, and

vacate the sentence and remand for resentencing in light of

United States v. Simmons, 649 F.3d 237, 2011 WL 3607266 (4th

Cir. Aug. 17, 2011).

Barnes moved to withdraw his guilty plea after the

presentence report (PSR) was prepared showing that he qualified

as a career offender and citing the statutory maximum for the

possession with intent to distribute cocaine base count was life

imprisonment. Because of an error in the superseding

indictment, which did not specify drug quantity, the statutory

maximum was reduced from life to thirty years. The court held a

2
hearing on the motion to withdraw and denied the motion. Prior

to sentencing, the Government filed a “Notice of Intention to

Seek Enhanced Penalties Title 21 U.S.C. § 851” noting Barnes had

been previously convicted in 1995 and 2000 in North Carolina

state court of felony possession of cocaine with intent to

sell/deliver cocaine. These are the same convictions that were

relied on as predicate offenses for the felon in possession of a

firearm count and for the career offender Guideline.

At sentencing, counsel filed a general objection to

the entire PSR, and the court permitted Barnes to discuss each

paragraph to which he objected. Among other things, Barnes

objected to the use of the North Carolina convictions to

increase his sentence based on the career offender enhancement

because the sentences he received were not more than twelve

months. The court denied the objection. The court sentenced

Barnes to 120 months on the felon in possession of a firearm

count and 262 months for possession with intent to distribute

cocaine base, to be served concurrently.

At the time of Barnes’ indictment and conviction, this

court determined whether a prior conviction qualified as a

felony for purposes of § 922(g)(1) by considering “the maximum

aggravated sentence that could be imposed for that crime upon a

defendant with the worst possible criminal history.” United

States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005). While

3
Barnes’ appeal was pending, however, Harp was overruled by the

en banc decision in Simmons. See Simmons, 2011 WL 3607266, at

*3. Simmons held that a prior North Carolina offense was

punishable for a term exceeding one year only if the particular

defendant before the court had been eligible for such a sentence

under the applicable statutory scheme, taking into account his

criminal history and the nature of his offense. Id. at *8; see

also N.C. Gen. Stat. § 15A-1340.17(c), (d) (2009) (setting forth

North Carolina’s structured sentencing scheme).

Under Simmons, it does not appear that Barnes’ prior

North Carolina convictions were crimes punishable by

imprisonment for terms exceeding one year for purposes of the

federal felon-in-possession statute. We do not have the state

court record on appeal. However, in light of Barnes’ 5-6 and

6-8 month sentences, under the North Carolina sentencing table,

it appears that Barnes could not have received a sentence of

more than twelve months. See N.C. Gen. Stat. § 15A-1340.17(c),

(d).

Accordingly, we vacate Barnes’ conviction and sentence

on the felon in possession of a firearm count and remand for

further proceedings. Because these convictions served as the

4
basis for the § 851 information and career offender status, 1 we

also vacate the sentence for the drug offense and remand for

resentencing.

Barnes’ counsel questions whether the district court

abused its discretion in denying Barnes’ motion to withdraw his

guilty plea, but ultimately concludes that the court did not err

in denying the motion. Barnes also raises this issue in his pro

se informal brief, arguing that he should have been permitted to

withdraw his plea because he thought he would be able to

challenge the motion to suppress ruling and that his

understanding was that he would not receive a sentence above 188

months.

This court reviews a district court’s denial of a

motion to withdraw a guilty plea for abuse of discretion.

United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).

“A defendant has no absolute right to withdraw a guilty plea.”

United States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003)

(internal quotation marks omitted). Once the district court has

accepted a defendant’s guilty plea, it is within the court’s

discretion whether to grant a motion to withdraw it. United

States v. Battle, 499 F.3d 315, 319 (4th Cir. 2007). The

1
Barnes contested the applicability of the career offender
status in his pro se informal brief.

5
defendant bears the burden of showing a “fair and just reason”

for withdrawing his guilty plea. Fed. R. Crim. P. 11(d)(2)(B);

Battle, 499 F.3d at 319. “[A] ‘fair and just’ reason . . . is

one that essentially challenges . . . the fairness of the Rule

11 proceeding.” United States v. Lambey, 974 F.2d 1389, 1394

(4th Cir. 1992). “[R]eversal is warranted only if the plea

proceedings were marred by a fundamental defect that inherently

resulted in a complete miscarriage of justice, or in omissions

inconsistent with rudimentary demands of fair procedure.”

Ubakanma, 215 F.3d at 425.

When considering whether to allow a defendant to

withdraw a guilty plea, the trial court must conduct the

six-factor analysis announced in United States v. Moore, 931

F.2d 245, 248 (4th Cir. 1991). Under Moore, a district court

considers:

(1) whether the defendant has offered credible
evidence that his plea was not knowing or not
voluntary, (2) whether the defendant has credibly
asserted his legal innocence, (3) whether there has
been a delay between the entering of the plea and the
filing of the motion, (4) whether defendant has had
close assistance of competent counsel, (5) whether
withdrawal will cause prejudice to the government, and
(6) whether it will inconvenience the court and waste
judicial resources.

Id.

Although all the factors in Moore should be given

appropriate weight, the key to determining whether a motion to

6
withdraw should be granted is whether the Rule 11 hearing was

properly conducted. Bowman, 348 F.3d at 414; United States v.

Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). This court closely

scrutinizes the Rule 11 colloquy and attaches a strong

presumption that the plea is final and binding if the Rule 11

proceeding is adequate. Lambey, 974 F.2d at 1394.

Here, the district court substantially complied with

the mandates of Rule 11 in accepting Barnes’ guilty plea.

Therefore, the plea is presumed to be “final and binding.” Id.

Moreover, Barnes has failed to establish the existence of a

“fair and just” reason for withdrawing the plea. See Fed. R.

Crim. P. 11(d)(2)(B).

Because, of the six Moore factors, the first two of

whether the plea was knowing and voluntary and whether the

defendant is innocent are the most important factors to

consider, we conclude the district court did not abuse its

discretion in denying Barnes’ motion to withdraw. At the

hearing, Barnes claimed that he thought the maximum sentence

would be 188 months. In addition, he thought that even though

he was pleading guilty he would be able to raise a suppression

issue on appeal. Barnes pleaded “straight up” and maintained

his appellate rights; however, this does not entitle him to

challenge antecedent constitutional claims related to his

conviction.

7
The district court held a lengthy hearing on the

motion to withdraw with testimony by Barnes and a detective

involved at the scene of arrest. The court properly decided

that the guilty plea was voluntary and knowing even though the

sentencing range was 188-235 months instead of the maximum of

188 months alleged by Barnes. 2 The court held that, even if an

estimated sentence of 188 months was what Barnes understood, it

was sufficient for the defendant to be informed because the

court told Barnes that it was an estimate of his sentence.

Further, at the hearing, Barnes admitted that he remembered the

Assistant U.S. Attorney saying that he would recommend 188, the

low end of the Guidelines range. At the Rule 11 hearing,

Barnes’ counsel stated that the sentence would be 188 months to

“two hundred something.” The transcript of the Rule 11 hearing

demonstrates that the AUSA stated that Barnes is a career

offender, and that 188 would be the low end of the Guidelines

range. Barnes also acknowledged at the Rule 11 hearing that the

court had discretion to impose a higher sentence.

The court also found that Barnes had not met his

burden to prove factual innocence since, at the time officers

executed a search warrant at his residence, he was found covered

2
This was the applicable Guidelines range before the court
struck the three-level reduction for acceptance of
responsibility.

8
in cocaine paste and running out of the residence. The officers

found cocaine, scales, crack, pyrex containers containing crack,

an amount of crack mixture in a bowl in the microwave, and

smudges of crack paste on the kitchen counter, doorway, and out

the door that Barnes ran through. Barnes claimed that he did

not know what the paste was or how it got on him. However, no

one else in the residence had crack paste or residue on them.

We conclude the court did not err in finding that Barnes had not

made a credible showing of his legal innocence. In

consideration of these findings and reviewing the other Moore

factors, we conclude that the court did not abuse its discretion

in denying the motion.

In accordance with Anders, we have reviewed the record

in this case and have found no other meritorious issues for

appeal. We therefore affirm in part, vacate in part, and

remand. We deny Barnes’ motions to produce grand jury records

and for a transcript at Government expense and motion for

discovery. This court requires that counsel inform Barnes, in

writing, of the right to petition the Supreme Court of the

United States for further review. If Barnes requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation. Counsel’s motion must

state that a copy thereof was served on Barnes.

9
We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional

process.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED